Police are still disclosing unproven allegations

An unusual delay in proclaiming the Police Records Check Reform Act into law has continued to undermine careers, volunteer opportunities and travel for many Ontarians whose police records include unproven, misleading or false allegations.

More than two years after passing legislation protecting innocent Ontarians from having unproven allegations, mental health incidents or withdrawn charges show up on their police record checks, the proposed law remains unenforced.

The Police Records Check Reform Act, passed at Queen’s Park in December 2015 by a vote of 93-0, followed a Toronto Star investigation that revealed that tens of thousands of Canadians have records in police databases despite having never been convicted of a crime.

The province still hasn’t proclaimed the legislation into law, meaning it is not yet in force. This unusual delay has continued to undermine careers, volunteer opportunities and travel because of the disclosure of false or misleading information, say lawyers, victims and a report from the John Howard Society to be published Wednesday.

“I get complaints about it about once a week,” said Toronto criminal defence lawyer John Struthers. “The acknowledgment of the importance of the presumption of innocence wasn’t a random event. It was a basic necessity of a civilized society.”

In response to questions from the Star, the Ministry of Community Safety and Correctional Services said the legislation remains a priority but did not provide a timeline for making it law.

“Our government heard from many Ontarians who lost out on opportunities when routine police record checks resulted in the inappropriate disclosure of non-criminal information,” said a ministry spokesperson, Dorijan Najdovski, in a written statement. “We are currently developing the appropriate regulations to support the legislation … This is an important issue to many across the province — that is why we are committed to getting this right.”

Unless the province’s process of public consultation, refining regulations and proclaiming it into law all happens before Ontario’s June election, the proposed law is in serious threat of dying, says Struthers.

“Years have passed without the work being done to develop the regulations in the face of police resistance,” he said. “This Liberal government has let us down.”

The repercussions of non-conviction disclosures can be dramatic, the Star’s investigation has found time and again.

Teresa Sanderson says her dream of becoming a police officer ended before it began — through no fault of her own.

After clearing background checks by the RCMP, Sanderson earned a spot in a Regina RCMP training facility in August 2017. Two weeks in, she was told there was a problem.

On Aug. 10, 2017 the RCMP’s “Risk Unit” emailed Sanderson asking for an interview “because of some alleged police involvement in Toronto from 1999 for which it appears there is a discrepancy. Every employee has to go through a security investigation at some time in order to obtain a security clearance. Without a security clearance, you cannot be employed by the RCMP.”

The Toronto Police records cited three unproven allegations, including a reference to Sanderson being a victim of domestic assault. Despite filing a freedom of information request for the records, Sanderson says the details remained vague.

In separate entries, her name was listed as “suspect,” “victim” and “accused,” RCMP officials told her. None of those incidents have anything to do with her, she says.

Sanderson, 39, doesn’t know how the records got there. Mistaken identity is one possibility, she says. Or, perhaps someone made baseless allegations against her to police that were never proven or even brought to her attention.

“The RCMP failed to recognize this. They failed to clear me.”

Even if the allegations were true, none of the charges indicate criminal convictions. Sanderson is, by any measure, an innocent person.

In her resignation letter to the RCMP four days later, Sanderson wrote: “I was made aware that with these remaining (Toronto Police records) associated to my name, I will not receive the highest level of security clearance at this time. I would like to withdraw from the program with the intention of reapplying once security clearance can be granted.”

That hasn’t happened. Sanderson has appealed to Toronto Police to expunge the records without success. She has now abandoned any hope of ever becoming a police officer.

“I sent letters saying it’s ruined my future career. It hasn’t worked. My whole life has been altered. My career, the whole direction that I was going in, completely altered.”

In an interview, Mark Pugash, a Toronto Police spokesperson, said the force explained to Sanderson her options for having the records expunged, but has not heard back from her.

“We have no record of her acting on the information we gave her,” he said.

Sanderson said her only response from Toronto Police was a letter in November advising her to submit background screening documents. She had already filed an RCMP document a month earlier detailing the reasons for her removal from the training program, she said. And background checks she obtained through the federal criminal record database turned up nothing under her name.

Pugash said Toronto Police stopped releasing mental health records in background checks in May 2015 and later stopped the release of non-conviction records — except in “exceptional” cases involving vulnerable persons — after the legislation passed in December 2015.

Sanderson’s non-conviction records were obtained by the RCMP in 2017.

“We did not provide those records; you’ll have to ask the RCMP,” Pugash said.

In a written statement, RCMP officials declined to comment, citing privacy considerations.

The Star continues to detail incidents of non-conviction releases across the province.

Last month, a Goderich man in his 70s was prevented from visiting his daughter who was in hospital with cerebral palsy, barred because of a “black mark” on his record as a caregiver, says his lawyer, Scott Cowan.

Two years earlier, the man was caring for his ailing wife who had dementia when she claimed to a nurse that he had thrown a cloth diaper at her. He was charged with assault. His wife died before the allegations went to court.

But the unproven claim, which the man vigorously denied and attributed to his wife’s failing mental capacity, remained.

“It seems that the police action made it into the hospital somehow,” Cowan said. “It’s creepy how something so vague and unsubstantiated can affect someone’s life so profoundly … He’s exasperated about this. He wants me to clear his name. But where do I clear his name from? There was no forum to clear it.”

Cowan called the disclosure of non-conviction records a “terrible social policy that flies in the face of redemption.”

Toronto lawyer Howard Rubel gets calls several times a month from clients asking what records might be released about them. “This has caused great stress to people. I’m often unable to tell them the answer because various police forces are left on their own to decide what to release. It is very inconsistently applied which leaves people with uncertainty.”

Sometimes the damaging police database disclosures have nothing to do with unproven allegations.

Mental health records have been cited by U.S. border officials to deny Ontarians entrance. In other cases, victims have told the Star that volunteer or professional opportunities have been lost because of long-past mental health crises.

“This is not Criminal Code stuff,” Toronto lawyer Anita Szigeti said. “You or someone else called 911 about potential self-harm and cops came to talk to you … That stuff can be horrific and damaging and fear of records kept has a chilling effect, meaning people don’t ask for help.”

The John Howard Society report, released exclusively to the Star, warns that police checks disproportionately affect people of colour and marginalized groups and urges the province to take immediate steps to bring into force the stalled legislation.

The report also asks the provincial government to amend the Ontario Human Rights Code’s “record of offences” provision to protect against discrimination on the basis of any record of offences — including criminal convictions, non-conviction records and mental health contacts. Currently, the code only protects those who have received a record suspension or who have provincial offences.

“This absurdity — that people who are convicted have legal protection, while those who are legally innocent have little to no protection — must be corrected by legislative change,” the report says.

The report found that more than 60 per cent of employers in some of Toronto’s largest industries said they require police record checks for all employees. Toronto Police Services conducted 117,000 checks in 2012, the report says.

Charges were stayed or withdrawn in 51,000 cases in Ontario in 2016, according to Statistics Canada figures cited by the John Howard Society, yet these records remain in police databases and create barriers to employment for people who may be legally innocent.

Ontario has the highest percentage of withdrawn cases in the country, at 43 per cent, while Quebec has a rate of only 9 per cent, according to Statistics Canada.

The report’s findings were consistent with the organization’s earlier research in London and Middlesex County and a 2014 study on barriers to employment for marginalized youth.

The report also recommends: Educate employers on the economic and social impacts of police records on employment; consider offering incentives to employers that would encourage them to hire people with criminal records and create an automatic regime for sealing records after certain waiting periods based on the offence.

“One goal of our study is to help identify and address a significant catch-22 in our society: the expectation that people move past their criminal justice histories while simultaneously putting up barriers that keep them from doing so,” the report says.